FACTS AND PROCEDURAL HISTORY:In 2007, Mother became pregnant after being romantically involved with both C.C. and B.H. Mother gave birth to Child in 2008. The following day, B.H. filed a Verified Petition for Immediate Paternity Order in Fayette Circuit Court, alleging B.H. was the father of Child. As a result of that petition, Mother was ordered to submit Child to DNA testing. On the same day Mother was served with the genetic testing order, Mother and C.C. executed a paternity affidavit stating C.C. was Child’s biological father.

Mother’s counsel appeared in B.H.’s paternity matter and filed a motion to dismiss based upon various factors.

Within a week of Mother’s receipt of the genetic testing results, C.C. filed a pro se Verified Petition to Establish Paternity in Hancock Circuit Court. The Petition did not disclose the pending Fayette County matter, nor the existence of the DNA testing. Concurrently, an Agreed Entry between Mother and C.C. — establishing paternity and support/custody arrangements — was submitted, and was approved by the Hancock Circuit Court the following day.

The same day that the Agreed Entry was approved in Hancock Circuit Court, a hearing was held in Fayette County on Mother’s motion to dismiss. The Agreed Entry from Hancock County was entered into evidence. Following the hearing, the Fayette County court dismissed B.H.’s action, but gave 10 days leave to amend. B.H. never amended his paternity petition.

Instead, B.H. subsequently went to the Hancock Circuit Court and filed a motion to intervene in C.C.’s paternity cause, and filed a Verified Petition for Relief of Judgment for Fraud Upon the Court. B.H.’s motion to intervene was granted. Following a hearing, the Hancock Circuit Court issued an order finding that the Agreed Entry establishing C.C.’s paternity was procured through fraud, including the non-disclosure of the pending Fayette County matter. The Hancock Circuit Court then voided the Agreed Entry that had established C.C.’s paternity. Mother appealed.

The Court of Appeals undertook a detailed analysis of the requirements to set aside an order based upon fraud. Ultimately, the Court of Appeals concluded that “the execution of the paternity affidavit, combined with the timing of the filing of the Hancock County proceeding, appear to have been part of a plan or scheme to suppress the true identity of [Child’s] biological father, which resulted in the issuance of a paternity order by the Hancock Circuit Court that prevented B.H. from ‘having an actual day in court[.]’” As such, the trial court’s order setting aside the paternity order based upon fraud was affirmed.

Judge Riley dissented, concluding that the trial court erroneously voided the paternity affidavit in light of relevant statute and case law. She also expressed public policy concerns that voiding C.C.’s paternity could leave Child a “child of no one.”

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